COUNTY OF
OGLE,
Complainant,
)
v.
AC 91-45
Dockets A & B
(County No. 91—R—3.003)
ROCHELLE DISPOSAL SERVICE,
)
(Administrative Citation)
INC.,
and CITY OF ROCHELLE,
)
ILLINOIS,
)
)
Respondents.
)
MR.. DENNIS
SCHUMACHER,
STATE’S
ATTORNEY
AND
MS. ROBBIN STUCK~,
ASSISTANT
STATE’S
ATTORNEYS
OF OGLE ~UNTY, APPEARED ON BEHALF
07
THE
PETITIONER;
MR.
JORDAN
GALLAGHER
OF
GALLAGHER,
KLEIN, AND BRADY,
APPEARED
01
BEHALF
OF
ROCH~LLE
DISPOSAL
SERVICES,
INC.;
AND
MR.
DENNIS
HEWITT
APPEARED
ON
BEHALF
OF
THE
CITi
OF
ROCH~tT~V.
OPINION
AND
ORDER
OF
THE
BOARD
(by
J.
C.
Merlin):
This action was initiated on Sept.abar 27, ~gg~ by the
filing of an administrative citation (AC) by
the
County
of
Ogle
(County).
The
AC was tiled pursuant to Section 31.1 of
the
Illinois Environmental Protection Act (Act).
The authority to
issue
ACs was delegated to
the
County pursuant to Section 4(r)
of
the
Act.
(Ill. Rev. Stat. 1991,
cli. 111 1/2, par. 1031.1 and
1004 (r).)
The AC charges Rochelle
Disposal
Services (Rochefle
Disposal) and the City of Rochelle (City) with violation of
•Section 21(0) (5)
.~
Both respondents filed a petition for review
on October 11,
1992,.
Hearing was held in this matter on April
29,
1992.
On June 4, 1992
the
Board
issued
en order denying
Rochelle Disposal’s motion to be dismissed
as
a
party
to thiS
action.
In addition,
the
June
4,
1992
Board
order
denied
Rochelle Disposal’s motion for summary judgment.
BACKGROUND
The respondents are charged with lack of daily cover in
1Section 21 of the Act was amended by Public Act 87-752,
effective January
1,
1992.
As a result, the two subsections
enforceable through the administrative citation process have
been
changed froni 21(p) and 21(q)
to 21(o) and 21(p)
respectively.
OI38-O3~3
2
violation of section 21(0) (5) of the Act.
The landfill at which
the alleged violation occurred is owned by the City.
Disposal
operates the landfill under a contract between it and the city.
The alleged violation took place on August 2, 1991.
Ogle County
alleges that the inspector, Mr. Steve
Rypkema,
arrived
at
Rochelle Municipal Landfill 2 for a regular inspection
at
6:58
A.)!. and found a lack of daily cover.
In the AC, the
County
charged the respondents with only
one
violation
and therefore
assessed a penalty of $500.00 as provided for in Section 42(b) (4)
of the Ac...
ISSUE
At hearing, Mr. Rypkema testified that when he arrived at
the landfil
site at 6:58 a.m., he found approximately 60—120
feet of garbage uncovered in the “Daily Fill Area”.
•
(Tr. at 10,
17, and 29.)
Sev~ra1photographs were tak.n by Mr. Rypkema at
the site and were entered into evidence.
(Cc~p.Group Zxh.
4.)
The
photographs
show
piled
garbage
with
what Mr. Rypkeaa
described
at
hearing
aS
small
patches
of
cover.
(Cóap.
Group
Exh.
4
at
12.6,
12.7,
12.8,
12.9,
12.10,
12.11,
and
12.12.)
Mr.
Rypkema
stated
that
when
he
was
driving
down
to
the
area
in
question,
he
saw
a
bulldozer
in
the
shed
and it followed him down
to
the
area.
(Tr.
at
45
and
46.)
Mr.
Rypkema
also
testified
that
when
be
was ~at
the
site,
he
spoke
with
Mr.
String
who
was
filling
in
for
the
regular
gate
operator,
Mrs.
Bearrows.2
.(Tr.
at
13.)
Mr.Rypk.aa
testified
that
Mr.
String
told
him
that
the
first
garbage
load
to
arrive
on
the
day
in
question
was
the
truck
which
arrived
when
Mr.
Rypkema
was
already
at
the
site.
•
(Tr.
at
19
and 36.)~’i(r.Rypkeaa
also
teótified
that
at
approximately
7:30
a.m.
Mr.
Clyde
Gelderloos,
thern
President
of
Rochelle
Disposal
Services
Incorporated,
arrived
at
the
site..
(Tr.
at
37.)
Mr.
Rypk.ma
tutlri.d that
be
asked
Mr.
Gelderloos
about
the
uncovered
garbage
and
slid
that
it
appeared
that
they
where
covering
weekly instead
of
daily.
(Tr.
at
38.)
According
to
Mr.
Rypkema,
Mr.
Gelderloos
did
not
respond
to the
allegation.
(Tr.
at
38.)
Mr.
Rypkema
went
on
to
testify
that
it
would
be
normal
for
a
landfill
operator
to
remove
the
soil
cover
from
the
night
before
in order to receive
more
refuse.
(Tr.
at
44
end
45.)
Kr.
Rypkema testified that during prior
inspections,
he could not
remember a time
when
the
daily
cover
was•
removed prior to his
7:00 a.m.
inspe~.tion.
(Tr. at 47 and 49.)
Bov”ver,.he did
testify that
in
the
past
be
had
seen
the
operato.~s remove
the
cover.
(Tr.
at 49.)
When this occurred, the covering was pushed
to the side of the work area or on top of the working face.
(Tr.
2No first name appears in the record for either Mr. String
or
Mrs.
Bearrows.
Uf38-O3L~
3
at
49.)
Mr.
Rypkema
went
on
to
explain
that
be
Could
tell
that
the
area
had
not
recently
been
scraped
because
there
was
no
soil
piled
up
around
the
working area.
(Tr.
at
49.)
In
addition,
be
testified that the area depicted in the photo marked 12.6 could
not
have
been
covered
because
if
the
cover
had
been
removed,
more
soil
would
be
mixed
in
with
the
garbage.
(Tr. at
120.)
At
hearing,
Mr.
Gelderloos
testified
for
the respondents.
He
stated
that
he
did
not
observe
the
area
in
question
until
after
solid
waste
had
already
been
received
that
day.
(Tr.
at
55)
However,
he
testified
that
it
was
his
opinion
that
the
area
was
properly
covered
the
night
before
but that
it
was
uncovered
early
on the morning
in
question
to
receive
waste
for
the
coming
day.
(Tr.
at
58.)
Mr.
Gelderloos
testified
that Mr. Ray
Hartman,
the
operator
responsible
for
covering
the
site,
normally
arrives
at
work
between
5:30
a.m.
and
6.
‘(Tr.
at
59.)
On the
day
in
question,
Mr.
Hartman’s
time card showed him as being
at
work
at
6.
(Tr.
at
59
and
Reap.
Each.
1.).
Mr.
Gsldazloos
teStified that normally, the daily cover would be
removed
and
placed off to one side or on
the
side
of
the downhill slope
toward
the
barrow
pit;
however,
Kr.
G.lderloos
did
not
notice
where the cover was placed on the day
in
question.
(Tr.
at
60
and 62).
Mr~ Ray Hartman also testified for the respondents
at
hearing.
Mr. Hartman
stated that be likes
to normally leave the
shed
area
by
6:15
a.a.
to
go
remove the
daily
cover.
(Tr.
at
74.
)
He
stated
that
there
.is
no
normal
time
be
removes the cover
but
that
it
must
be
done
before
the
first
truck
arrives
with
solid
waste.
(Tr.
at
75.)
Mr.
Bartaan tstified that
on
August
1•,
1991,
he
covered
the
area
before
he
left
work.
(Tr.
at
78.)
Mr.
Hartnaan
testified
that
on
August
2,
1991,
he
got
to
work
et 6:00 a.m. and went down to the pit in
the
bulldozer to remove
the cover~.
(Tr. at 80)
However, he ended up having to go back
to the repair shop because of a leak in
one
of
the hoses.
(Tr.
at 80 and Resp. Exh.
2.)
In contrast to Kr.
Rypksma’s
allegations,
Mr.
Bartman
testified
that
he
had removed
the cover
from the area before he went back to the repair
shop.
(Tr. at
80.)
Mr. Rartman also testified that it normally takes him
twenty to twenty—five minutes to remove
the cover and that it
took him five or six minutes to fix the hose.
Thus, be returned
to the daily fill area in the bulldozer at about
7:00.
(Tr. at
82 and 83.)
Finally, Mr. Harthan testified that he could not remember
where he piled the covering on the
day
in question.
(Tr. at
102.)
Mr. Martman, when looking at complainant’s group exhibit
4,
photographs
12.5
and 12.11 could not identify where the daily
cover had been piled.
(Tr. at 102 and 103.)
Mr. Hart*an
testified that it would be hard to tell from the pictures where
the daily cover material had been stacked because it mixes with
O138-O3~5
4
the garbage
and
does
not
look
like
a
pile
of
soil
when
removed.
(Tr. at 104.)
Instead, be testified
it
would
look
like
piles
of
garbage.
(Tr.
at
104.)
DISCUSSION
In
its
AC,
the
County
charged
the
respondents
with
a
violation of Section 21(o)(5).
(AC at 1.)
Section
21(0)(5)
prohibits any person from conducting
a sanitary landfill which is
required to have a permit,
in such a
manner
as to
leave
uncovered
waste remaining from
a previous operating day
or
at
the
conclusion of an operating day
unless
the facility’s
permit
50
allows.
The
Respondents
are
permitted
pursuant
to
Section
21(d) of
the
Act.
The operating
permit
issued to
the
City
of
Róchelle
does
not
allow
for
uncovered
refuse at
the and
of
an
operating
day.
In fact, the
permit
specifically states in
the
Standard
Conditions section that ~wastemust be compacted in
layers
and
covered daily with six inches of suitable
material.”
(Camp.
Each.
2 at 3)
Therefore,
the
sole issue is whether or
not
daily
cover
was applied.
In the case at hand, there
was
extensive
testimony
from
each side regardingthe issue
of
cover.
Mr.
Hartean
testified
that
he
bad
removed
the
cover
to
begin
rlc*iving
new
waste,
and
Mr.
Rypkema
testified
that
in
his
opinion
no
cover
was
ever
applied
to
the
area in question.
The
photographs
taken during
the
inspection
and.
entered
as
Complainant’s Group Exhibit
4 show
a large pile of un-compacted garbage with little or no soil
coverage.
It
is
obvious
from
the
photographs that very
little,
if
any,
dirt
is mixed in with the garbage at the
site.
Additionally, both
Mr.
Hartaan
and
Mr.
Gelderloos
testified
that when the daily cover is removed, a pile of dirt with garbage
mixed in is created.
However, Mr.
Hartman
was unable
to explain
where the piles of daily cover were placed on the
day
in question
and no piles were
shown
in
the
photographs.
In addition, Mr.
Gelderloos testified that
he could not
remember where the
pile of
daily cover was located on the day
of the alleged viOlation.
The Board, after careful consideration,
is
persuaded
by
Mr.
Rypkezna’s
testimony
and
the
photographs taken
at
the inspection
which
corroborate
Mr.
Rypkema’s
teFtimofly.
The
Board
believes
that if daily cover had been applie.. and
later
removed
that
the
garbage shown
in
the photogr~bs
would be
more cozpaàted and dirt
would
be
mixed
throughout.
At.litionally,
the
pile
of
dirt
from
the
removal
should
have
been
visible.
For
the
reasons
stated
in
the
above
opinion,
the
Board
finds
that the respondents, the City of Rochelle and Rochelle Disposal
Inc.,
have
violated
Section
23(o)
(5)
of
the Act.
Accordingly,
0138-03136
5
the respondents are jointly and serverably liable for a penalty
of
$500.00.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
1.
Respondents, the City of Rochelle and
Rochelle Disposal Inc., are
hereby found to
have violated
Ill. Rev. Stat.
1991,
oh. 111
1/2, par. 2l(o)(5).
2.
Within 30 days of this order, the respondents
shall pay the sum of five hundred dollars
($500.00) by check or money order
to
the
Ogle
County Treasurer.
The
payment shall be
mailed to:
Ogle
County
Treasurer
Ogle
County
Courthouse
P.O. Box 40
Oregon, Illinois 61061.
Respondents shall also
write
their Federal
Employer
Identification.
Number
or Social
Security
Number on
the
certified
check
or
money
order.
Any such penalty not paid within
the
time
prescribed
shall
incur
interest at the rate
set forth in subsection
(a) of Section 1003
of the Illinois Income Tax Act,
(Ill. Rev.
Stat.
3991,
ch. 120, par.
10—1003), as now or
hereafter amended, from the date payment is
due
until
the date payment is received.
Interest shall not accrue during the pendency
of
an
appeal
during
which
payment
of
the
penalty has been
stayed.
3.
Docket
A
in this matter is
hereby
closed.
4.
Within 30 days of this order,
the
County
shall file a statement of
its hearing costs,
supported by affidavit, with
the
Board and
with service
on
the
respondents.
Within
the
same
30
days,
the
Clerk
of
the
Pollution
Control
Board
shall
file
a
statement
of
the
Board’s
costs,
supported
by
affidavit
and
with
service
upon
the
respondents.
Such
filings
shall
be
entered
in
Docket
B
of
this
matter.
0138-031+7
6
5.
Respondents are hereby given leave to file a
reply/objection
to
the
filings
as
ordered
in
paragraph
4
of
this
order
within
45
days
of
this order.
IT
IS
SO
ORDERED.
Section 41 of the Environmental Protection Act
(Ill.Rev.Stat. 1991, Ch Ui
3/2, par.
1041)
provides
for
appeal
of final orders of the Board within 35 days.
The
rules of the
Supreme Court of
Illinois establish filing requirements.
(But
see also 35
Ill.
Adm.
Code
101.246,
Motions
for
Reconsideration,
and Castenada
v. Illinois Human
Riabte commission
(1989), 132
Ill. 2d 304, 547 N.E.2d
437~)
I, Dorothy K.
Gunn,
Clerk
of
the Illinois Pollution Control
Board,
hereby
certif__that
the
above ppjnion and
order was
adopted
on
the
__________
day
of
by .a vote of
__________________
Control Board
0138-031+8